Op-Ed What Should Be DONE? Reviving the Voting Rights Act After Shelby County v. Holder

The 14th Amendment, the second of the three great Civil War Amendments, was passed in 1868. The 13th Amendment abolished slavery, the 14th Amendment conferred citizenship on the newly emancipated slaves, and the 15th Amendment prohibited abridging the right to vote on account of race, color, or previous condition of servitude.

Taken together, these amendments were intended and have the effect of making former slaves, and their descendants, full and equal members of the political community known as the United States of America.

Section 2 of the 14th Amendment is noteworthy because it did two important things. First, it repealed that part of Article I, Section 2, which counted slaves as 3/5 of a person for purposes of taxation and apportionment of seats in the House of Representatives.

Second, it punished states that denied the right to vote to any male citizen over the age of 21 (who was neither a felon nor had fought on the side of the Confederacy during the Civil War) by reducing their population for purposes of representation in Congress. Women were guaranteed the right to vote 52 years later with the ratification of the 19th Amendment in 1920, but even then African American women still faced the same barriers and obstacles to voting as African American men and other minorities.

The Framers knew then, and everyone knows now, that the male citizens over the age of 21 who were being denied the right to vote were the former slaves. The Framers of the 14th Amendment also knew which states were denying these citizens the right to vote. The Framers could have identified those states by name but elected not to do so.

They chose not to do so because that would have required them to despoil the sanctity and revolutionary character of the Constitution by having to acknowledge explicitly that slavery had existed legally in a country founded on the “self-evident truth” that “all men are created equal.” It is for this reason that the Framers never used the words “slave,” “slaveholder,” “master,” or “slavery” anywhere in the original Constitution. The single oblique reference in the Constitution was the provision counting “all other persons” as three-fifths for purposes of apportionment and taxation. The single reference in the Civil War Amendments is the negative declaration in the 13th Amendment that “neither slavery nor involuntary servitude shall exist . . . in the United States.”

The reason this is important to the debate over the Supreme Court decision in the Voting Rights case of Shelby County v. Holder is because it shows that when it comes to matters of race and politics in America, the Framers and Congress have always been masters of writing in code so as not to bruise the feelings or upset the tender sensibilities of their fellow citizens. The Framers and Congress were practiced in the art of expressing their true views and achieving their objectives without enshrining in the Constitution or laws the fact that certain acts in the nation constituted harsh discrimination. This was based upon the high values of freedom, justice, and democracy upon which our nation was fo

unded and Congress called upon those same high values in framing the the 13th, 14th, and 15th Amendments and in exercising its authority to ensure that all Americans have the unfettered right to vote.

The obvious conclusion that can be drawn from this history is that the Congress that drafted the 1965 Voting Rights Act knew exactly what it was doing when it devised the coverage formula of Section 4(b). Congress wanted to protect the right to vote of citizens in the states where it was being abridged on account of race. And it knew precisely which states were abridging that right on account of race. They were the same states targeted by Section 2 of the 14th Amendment. Congress could have identified those states by name in the statute but followed the custom established by the Framers of the Constitution and the 14th Amendment and declined to do so.

What does any of this have to do with the Supreme Court’s decision in Shelby County v. Holder? Simply this: The rationale for the Court’s invalidation of Section 4(b) is the erroneous assumption or willful misrepresentation that the Congress that passed the 1965 Voting Rights Act was interested only in increasing voter registration and turnout rates in states that had a large racial gap in such rates.

The Court majority confuses the symptom with the cause. Congress’ focus was not on voter registration or turnout rates. Congress instead was focused on eliminating the causes or at least eradicating the effects of racial discrimination in voting in states that had a “unique history of problems with racial discrimination in voting.” Based on the discussion above, Justice Ginsburg was exactly right when she wrote in her dissent that the question in 2006 was not which states were to be covered by Section 4(b) and thus subject to pre-clearance as was the case in 1965. Rather the question before Congress in 2006:

“Was there still a sufficient basis to support continued application of the pre-clearance remedy in each of those already-identified places?”

Id. at 34. In a record exceeding 15,000 pages in length compiled after holding 21 hearings and receiving testimony from more than 150 witnesses, Congress carefully and meticulously documented why the covered states could not yet be expected to refrain from a return to the days wherein the finding existed that “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that pre-clearance is still needed.” Id. at 7.

The Voting Rights Act as passed in 1965, and extended in 1970, 1975, 1982, and 2006 was intended by Congress to enforce and make real the promise of the 15th Amendment’s guarantee of the right to vote to racial and language minorities. The right to vote, free from discrimination, is the capstone of full citizenship conferred by the Civil War Amendments. It was in pursuit of the full measure of American citizenship and not just to increase registration and turnout rates that my colleague, Congressman John Lewis, shed his blood on the Edmund Pettus Bridge in Selma, Alabama. And it was also the reason that in 1975 Congresswoman Barbara Jordan, who represented the historic 18th Congressional District of Texas, introduced, and the Congress adopted, what are now Sections 4(f)(3) and 4(f)(4) of the Voting Rights Act, which extended to language minorities the protections of Section 4(a) and Section 5.

Thus, voting registration and turnout rates were not the sole concern. Indeed, the evidence was so powerful and compelling that racial and language discrimination in voting remains serious and widespread that the bipartisan majority vote to renew the Voting Rights Act with the pre-clearance provisions designed to protect minority voting rights was the largest in history: the House vote was 390-33 and the Senate vote was 98-0. And to drive home the point that Congress intended to provide the maximum protection to the right to vote to racial and language minorities, Congress even amended the short title in 2008 in response to legislation introduced by Senators Salazar and Cornyn in the Senate and me in the House so that the formal name of the Act is the “Fannie Lou Hamer, Rosa Parks, Coretta Scott King, Cesar E. Chavez, Barbara C. Jordan, William C. Velasquez, and Dr. Hector P. Garcia Voting Rights Act Reauthorization and Amendments Act of 2006.” Additionally, I proposed an amendment in 2006 to add Congressman John Lewis’s name to the legislation and I hope soon to see that happen when the Republicans and Democrats come together to pass the necessary legislation to restore the Voting Rights Act.

If we reflect on the above analysis, two major themes emerge. First, the right to vote of all Americans is to be guaranteed and second, that the exercise of that right should be unfettered. In the years since passage in 1965 to the present, the Voting Rights Acts has been instrumental in helping many Americans, especially language and racial minorities. But the recent national election brought more problems to light that need to be addressed so that seniors, the disabled, students, and other Americans enjoy unfettered access to the ballot. This seems to provide a road map to Congress to come together and rally around the broad general principle that every American should have the right to vote and barriers and obstacles burdening the exercise of that right should not be tolerated. I cannot believe that there can be any real disagreement on this point.

The significance of the above recitation of history and fact is that it leads to a number of options available to Congress to revive the Voting Rights Act in light of the decision in Shelby County v. Holder, including the following:

1. Include in the new legislation renewing Section 4(b) of the Voting Rights Act consisting of an express finding that the dominant and overriding purpose of Congress in passing the Act in 1965 was to eradicate racial discrimination in voting in jurisdictions that had a unique history of problems with racial discrimination in voting and that, since 1975 when it added Section 4(f)(3) and (4) and Section 203, Congress was equally determined to protect language minorities from discrimination in voting.

2. Include also in the amending legislation an express finding that the dominant and overriding purpose of Congress in renewing the Act for an additional 25 years is to continue subjecting certain named jurisdictions covered under the 1965 to the pre-clearance requirements of Section 4(a) and (5) because the record documenting the nature and extent of their compliance with the Voting Rights Act has led Congress to conclude that there still exists in those states intolerable levels of racial and language discrimination in voting and that the problems with racial and language discrimination in voting in those states far exceeds the median level of problems found in states not covered by Section 4(b).

3. Based upon the above findings in paragraphs (1) and (2), an appropriate formula that can withstand constitutional scrutiny and pass constitutional muster and the test of time can be added to the Voting Rights Act. Many of us will be collaborating with our colleagues to develop such a formula that can garner the support of both houses of Congress.

The Voting Rights Act, as amended, is a balanced and measured response to the racial and language discrimination in the voting problem that still plagues our country. Measured, because only those jurisdictions in which the problems are greatest are covered. Balanced, because the Act includes reasonable provisions through which covered jurisdictions can render inapplicable the Act’s pre-clearance requirements. In fact, as Justice Ginsburg noted in her dissent, “Nearly 200 jurisdictions have successfully bailed out of the pre-clearance requirement, and DOJ has consented to every bailout application filed by an eligible jurisdiction since the current bailout procedure became effective in 1984.”Id. at 22 (emphasis added).

Supreme Court decisions should be thoughtful and thorough. The majority decision in Shelby County v. Holder is misdirected and erroneously rests upon a legal fiction. The Voting Rights Act was and is carefully drafted and crafted to achieve the national goal of eradicating racial and language discrimination in voting. It is up to Republicans and Democrats in Congress to work together to pass legislation that will ensure that the Voting Rights Act remains on the books until the voting rights of each and every American is secure.

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Congresswoman Jackson Lee is a Democrat from Texas’s 18th Congressional District. She is a senior member of the House Committees on Judiciary and Homeland Security and is Ranking Member of the Homeland Security Subcommittee on Border and Maritime Security. She holds the seat previously held by the late Congresswoman Barbara Jordan.